Rocha v. State

¶1OPINION ON STATE’S MOTION FOR REHEARING

¶2This appeal is from a conviction for aggravated assault obtained under an indictment for attempted murder. Punishment was assessed by the jury at ten (10) years’ imprisonment, probated.1

¶3On original submission, a majority of a panel of this court reversed appellant’s conviction based on unassigned error.2 It was held that the court committed fundamental error when in its charge it authorized the conviction of appellant for aggravated assault upon the finding of a culpable mental state of recklessness, which culpable mental state was not alleged in the indictment. The appellant had requested the charge on aggravated assault and did not object to the charge on this ground.

¶4The opinion made clear that aggravated assault was a lesser included offense of attempted murder and the appellant was entitled to a charge thereon since the evidence raised the same, and that if only the culpable mental states of intentionally and knowingly alleged in the attempted murder indictment had been used in the charge on aggravated assault no error would have been presented. It was the inclusion of the additional culpable mental state of recklessness that triggered the reversal on unassigned error.

¶5The State in its rehearing motion asks an examination and reconsideration of the panel opinion. This we shall do.

¶6The attempted murder indictment in this cause alleged that the appellant did:

“... then and there knowingly and intentionally attempt to cause the death of Victor Velasquez, an individual, by shooting the said Victor Velasquez with a handgun, said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.” (Emphasis supplied.)

¶7Upon request by appellant’s counsel, the trial court (applying the law to the facts) charged the jury on the offense of aggravated assault as follows:

“Now if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there intentionally and knowingly or recklessly, by the use of a fire*301arm, if any, cause bodily injury to Victor Velasquez, or if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there knowingly or intentionally or recklessly cause serious bodily injury to the said Victor Velasquez, then you will find the defendant guilty of the offense of aggravated assault and so say by your verdict.” (Emphasis supplied.)

¶8We turn initially to a reexamination of the question of whether aggravated assault is a lesser included offense of attempted murder.

¶9Article 37.09, V.A.C.C.P., relates to lesser included offenses, and provides:

“An offense is a lesser included offense if:

“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.” (Emphasis supplied.)

¶10V.T.C.A., Penal Code, § 6.02(d) and (e), read as follows:

“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

“(1) intentional;

“(2) knowing;

“(3) reckless;

“(4) criminal negligence.

“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged” (Emphasis supplied.)

¶11The elements of murder are defined by V.T.C.A., Penal Code, § 19.02. As relevant here they are as follows:

1) a person;

2) who intentionally or knowingly causes the death of an individual; or

3) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

¶12The elements of criminal attempt to commit murder are controlled by V.T.C.A., Penal Code, § 15.01. They are as follows:

1) a person;

2) who with the specific intent to commit murder;

3) does an act amounting to more than mere preparation, which;

4) tends but fails to effect the commission of murder.

¶13The indictment in the instant case alleged attempted murder pursuant to V.T.C.A., Penal Code, §§ 15.01 and 19.02(a)(1).

¶14V.T.C.A., Penal Code, § 22.01, provides in part:

“(a) A person commits an offense if he:

“(1) intentionally, knowingly, or

recklessly causes bodily injury to another; or .... ”

¶15V.T.C.A., Penal Code, § 22.02, provides in part:

“(a) A person commits an offense if he commits an assault as defined in Section 22.01 of this code and he:

“(1) causes serious bodily injury to another; or

“(3) uses a deadly weapon.”

¶16The elements of aggravated assault relevant here under V.T.C.A., Penal Code, § 22.02, are (1) a person, who (2) intentionally, knowingly, or recklessly (3) commits an assault; which either (4) causes serious bodily injury, or (5) is effected by the use of a deadly weapon.

¶17At least, and without further consideration, aggravated assault may be a lesser included offense of attempted murder under Article 37.09(1) and (3), supra.

¶18On other occasions this court has held that aggravated assault may be a lesser *302included offense of attempted murder. See, e.g., Teal v. State, 543 S.W.2d 371 (Tex.Cr.App.1976),3 and Williams v. State, 622 S.W.2d 578 (Tex.Cr.App.1981).

¶19The fact that the lesser included offense of aggravated assault may be committed by the “additional” culpable mental state of “reckless” does not preclude a charge thereon even though said culpable mental state is not alleged in the indictment. By definition, V.T.C.A., Penal Code, § 6.02(d) and (e), “reckless” is a lesser culpable mental state than “intentional” and “knowing.”

¶20For the purposes of the submission to the jury of the lesser included offense of aggravated assault, we hold the culpable mental state of “reckless” is included under the canopy of the higher culpable mental states of “intentional” and “knowing” alleged in the indictment for the greater offense of attempted murder. Thus it was not error, much less fundamental error to submit a charge authorizing conviction of the lesser included offense of aggravated assault upon a finding of the lower culpable mental state of “reckless.”

¶21We are reinforced in our conclusion by several fairly recent cases.

¶22In Brooks v. State, 548 S.W.2d 680 (Tex.Cr.App.1977), the defendant, indicted for murder, was convicted of the lesser included offense of voluntary manslaughter. On appeal Brooks complained of the trial court’s refusal to submit to the jury the issue of involuntary manslaughter. This court rejected the contention on the ground there was “... no evidence that the appellant acted in a reckless manner .... ” Even though the indictment did not allege the word “reckless” or any variation thereof,4 the Brooksopinion made it plain that involuntary manslaughter was a lesser included offense of murder, and that if there had been evidence of recklessness the issue of involuntary manslaughter should have been submitted.5 In so holding, this court made the following statement:

“Since involuntary manslaughter requires a lesser culpable mental state on the part of the actor, it is by definition a lesser included offense of murder and of voluntary manslaughter. See Article 37.-09, V.A.C.C.P.”

¶23This part of the Brooksopinion was endorsed in Garcia v. State, 574 S.W.2d 133, 134 (Tex.Cr.App.1978).

¶24In Moore v. State, 574 S.W.2d 122 (Tex.Cr.App.1978), the defendant was indicted for murder and convicted of the lesser included offense of involuntary manslaughter. On appeal he complained of the trial court’s refusal to submit a jury charge on criminally negligent homicide. Even though the only culpable mental states alleged in the murder indictment were knowingly and intentionally,6 this court held that *303the trial court reversibly erred in failing to instruct the jury on the lesser included offense of criminally negligent homicide. See also Branham v. State, 583 S.W.2d 782 (Tex.Cr.App.1979).

¶25In Ormsby v. State, 600 S.W.2d 782 (Tex.Cr.App.1979), the defendant was indicted for and convicted of involuntary manslaughter. On appeal Ormsby complained the court below refused to charge on the lesser included offense of criminally negligent homicide. Finding that the evidence raised the issue, this court following Moore v. State, supra, held that criminal negligence is a lesser culpable mental state than recklessness so as to make criminally negligent homicide a lesser included offense of voluntary manslaughter and reversed the conviction. It is here observed that the culpable mental state of criminal negligence was never stated in the indictment.7

¶26The panel opinion, reversing the instant case, relied upon Young v. State, 605 S.W.2d 550 (Tex.Cr.App.1979), and other cases which should be distinguished.

¶27In Youngthe murder indictment alleged the offense under the mode or theory of V.T.C.A., Penal Code, § 19.02(a)(1), in pertinent part as follows:

“... knowingly and intentionally cause the death of an individual, James Graham, by shooting him with a gun.”8

¶28In submitting the case to the jury, the court charged on the lesser included offense of voluntary manslaughter for which Young was convicted. In submitting the lesser included offense, the court authorized a conviction for voluntary manslaughter pursuant to V.T.C.A., Penal Code, § 19.04, coupled with the mode or theory of murder under § 19.02(a)(1), as alleged in the indictment as well as the mode of murder under § 19.02(a)(2), not alleged in the indictment. The court reversed the conviction, noting “... the jury was authorized to convict appellant under a theory not included in the indictment.” The court cited Garcia v. State, 574 S.W.2d 138 (Tex.Cr.App.1978), and Fella v. State, 573 S.W.2d 548 (Tex.Cr. App.1978), in support of its holding.

¶29To the same effect as Youngis Colbert v. State, 615 S.W.2d 754 (Tex.Cr.App.1981), and Deitch v. State, 617 S.W.2d 695 (Tex. Cr.App.1981).

¶30The so-called Youngline of cases are similar to the instant case in that each involved a question concerning the submission to the jury of a lesser included offense. They are, however, distinguishable. In Youngthere was a difference between the basic mode or theory of the offense alleged and that submitted in the charge to the jury as to the lesser included offense. In the instant case there is no difference in the basic mode or theory of prohibited assaultive conduct alleged in the indictment and that submitted to the jury in connection with the lesser included offense. The allegations in the instant indictment charged a direct attempt to cause death [V.T.C.A., Penal Code, § 19.02(a)(1) ] as opposed to an indirect attempt via the commission of a dangerous act, etc. [V.T.C.A., Penal Code § 19.02(a)(2)]. The charge to the jury in the instant case concerning the lesser included offense submitted a lesser assaultive *304offense, based on a theory of direct as opposed to indirect assaultive conduct. While there is a surface difference between the indictment and the charge to the jury on the lesser included offense, it is not a difference in the basic theories of prohibited conduct. The surface difference is between the culpable mental states alleged in the indictment and those submitted to the jury with regard to the lesser included offense. There is no actual difference when the law of lesser included offenses and lesser included culpable mental states is considered. The only difference between the culpable mental states alleged and those submitted with regard to the lesser included offense was the additional culpable mental state of “reckless” which is a lesser culpable mental state of the “intentionally” and “knowingly” which were alleged.

¶31Whatever continued viability the Youngline of cases may have, its rationale should not be extended in the instant case.

¶32Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), also cited by the panel opinion, is also distinguishable. Robinson was indicted for aggravated robbery. In submitting the case to the jury the court authorized a conviction for every conceivable theory under Y.T.C.A., Penal Code, § 29.02 (Robbery), and § 29.03 (Aggravated Robbery), rather than limiting it to the mode or theory alleged in the indictment.

¶33Hutchins v. State, 590 S.W.2d 710 (Tex.Cr.App.1979), is likewise distinguishable. Hutchins was indicted for aggravated robbery. The culpable mental states alleged were “intentionally” and “knowingly.” The charge authorized conviction upon the culpable mental states alleged as well as “recklessly.” In reversing this court noted the charge was fundamentally defective as authorizing a conviction on a theory not alleged in the indictment. The court stated: “Further, V.T.C.A. Penal Code, § 29.02, does not provide for any robbery offense involving the reckless threatening or placing another in fear of imminent bodily injury or death.”

¶34For the reasons stated, we conclude the panel was in error in reversing this cause on the ground stated.

¶35Appellant also urges two additional grounds of error which were not answered on original submission. These involve two claims of improper jury argument at the penalty stage of the trial to which there was no objection. These contentions were decided adversely to appellant in the companion case of Rocha v. State, 634 S.W.2d 730 (Tex.Cr.App.), which was disposed by a per curiam opinion on June 16, 1982. We adhere to that disposition and conclude that a further discussion of the same grounds is not here warranted.

¶36The State’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is affirmed.